Q: How does the Supreme Court’s Windsor v. United States decision impact immigration law?

A: The Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. embassies and consulates will adjudicate visa applications that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses.   This means that the same sex spouse of a visa applicant coming to the U.S. for any purpose – including work, study, international exchange or as a legal immigrant – will be eligible for a derivative visa.  Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status. [italics added]

As previously discussed on this blog, the fact that Section 3 of the Defense of Marriage Act (DOMA) has been found unConstitutional by the United States Supreme Court means that an American Citizen, or lawful permant resident, can now petition the United States Citizenship and Immigration Service (USCIS) for imigration benefits for a same sex spouse (or fiance, so long as the petitioner is an American Citizen). However, the US State Department, which is responsible for Consular Processing of visa applications, had yet to make specific comments regarding adjudication of visa application based upon a same sex marriage (or fiance) immigration petition. As can be seen from above, the Department of State has brought their procedures into line with the recent Supreme Court decision.

Of interest to many same sex couples is the issue of jurisdiction as same sex marriages are only recognized by a limited number of US States. The following portion of the aforementioned FAQ focuses on this point:

Q: Do we have to live or intend to live in a state in which same sex marriage is legal in order to qualify for an immigrant or nonimmigrant visa?

A: No. If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for immigration purposes.  For more information, please review the following page on the United States Citizenship and Immigration Service’s (USCIS) website. [italics added]

As there are a limited umber of U.S. jurisdictions which recognize and solemnize same sex marriage as well as a number of States in which such marriages are forbade, there have been questions among legal professionals as well as same sex couples regarding whether the U.S. Immigration officers and Consular Officers at various U.S. posts abroad would fail to approve visa applications and immigration petitions based upon the fact that an LGBT couple may be married in one State and residing in another. In a previous posting on this blog, the USCIS’s answer to this question rested on the “law of the place where the marriage took place“. Basically, USCIS appears willing to approve an otherwise valid immigration petition based upon a same sex marriage if the same sex marriage is performed in a State which allows such unions. Apparently, the Department of State has set a similar policy, thereby allowing an otherwise valid same sex marriage visa application, based upon an USCIS-approved immigration petition, to be approved. However, there are some jurisdictions around the world which may recognize same-sex unions, but do not necessarily categorize them as “marriages”. In those circumstances the Department of State had the following to say:

Q: I am in a civil union or domestic partnership; will this be treated the same as a marriage?

A: At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for  immigration purposes. [italics added]

Although the above answer appears to be rather straightforward, there is one question, of possibly more significance, that many unmarried same sex couples may be pondering:

Q: I am a U.S. citizen who is engaged to be married to a foreign national of the same sex.  We cannot marry in my fiancé’s country. What are our options? Can we apply for a fiancé K visa?

A: You may file a Form I-129F and apply for a fiancé(e) (K) visa.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for the purpose of marriage.  For information on adjusting status, please review the following page on USCIS’s website:

Since same sex unmarried couples are now permitted to apply for a K-1 visa, it would now appear possible for the LGBT fiance of an American Citizen to apply for a US fiance visa with the intention of marrying in one of those jurisdictions in the United States which recognize same sex marriages.

Another issue which may arise in the context of same sex marriage is the issue of non-immigrant visas (also known as NIVs). These are visa categories which do not confer immigrant status upon those who use them. The Department of State website posted the following information regarding NIVs for same sex married couples:

Q: Can same sex couples now apply for visas in the same classification?

A: Yes. Starting immediately, same-sex spouses and their children are equally eligible for NIV derivative visas.  Same-sex spouses and their children (stepchildren of the primary applicant when the marriage takes place before the child turns 18) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild.  In cases where additional documentation has always been required of a spouse applying with a principal applicant, such documentation will also be required in the case of a same-sex spouse… [italics added]

Finally, a point to note for those LGBT couples who are in a situation in which the foreign spouse has children:  

Q: My foreign national spouse has children. Can they also be included with my spouse’s case?

A: Yes, the children of foreign national spouses can be considered “step-children” of the U.S. citizens and can therefore benefit from a petition filed on their behalf in the IR2 category.    In other categories, stepchildren acquired through same sex marriage can qualify as beneficiaries (F2A) or for derivative status (F3, F4, E1-E4, or DV).  You and your spouse must have married before the child turned 18. [itlaics added]

Clearly, the Department of State allows for step-children of Americans or lawful permanent residents to immigrate where the LGBT couple was married prior to the step-child’s 18th birthday. From the information posted on the State Department’s website regarding non-immigrant visas one could infer that an American Citizen’s prospective step-children (i.e. the children of a foreign fiance) may also be eligible to obtain a K-2 visa based upon the bona fide intention of the American Citizen and his or her foreign fiance to marry in the United States.